June 25, 2012

In April, the Equal Employment Opportunity Commission signaled that it would begin to crack down on employers who use the criminal histories of job applicants to discriminate against them illegally. ...

The notion that using criminal records in employment decisions could constitute discrimination has been government policy since at least the 1970s. The E.E.O.C. has in the past issued policy statements, called enforcement guidance, about how employers may use criminal records without running afoul of the Civil Rights Act, but in April the agency published new enforcement guidance.

The new guidance “consolidates and supersedes” those earlier policies, the commission said in an accompanying question-and-answer document. And while the underlying theory of what actions constitute discrimination appears not to have changed, labor lawyers say the new policy requires companies to establish procedures to show they are not using criminal records to discriminate by race or national origin.

... Employment discrimination provisions of the act apply to companies with more than 15 employees and define two broad types of discrimination, disparate treatment and disparate impact. ...

Disparate impact is more complicated. It essentially means that practices that disproportionately harm racial or ethnic groups protected by the law can be considered discriminatory even if there is no obvious intent to discriminate. In fact, according to the guidance, “evidence of a racially balanced work force will not be enough to disprove disparate impact.”

As the E.E.O.C. establishes in its guidance, members of some minority groups are much more likely to be arrested and convicted than whites. From the commission’s perspective, the Civil Rights Act serves to make certain that disparity is not compounded in the workplace.

In its guidance, the commission warns employers not to use arrest records at all in hiring decisions. ...

A conviction, on the other hand, “will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas,” according to the guidance. But convictions seem to have put the E.E.O.C. in a bind. The document cites Department of Justice statistics that show a Hispanic man is nearly three times as likely as a white man to be incarcerated, and an African-American man is nearly six times as likely. In 2008, according to the commission, “African-Americans and Hispanics were more likely than whites to be arrested, convicted or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for whites.”

Uh, what's their rate of drug dealing? A large fraction of people in jail on "drug possession" charges are drug dealers, just as Al Capone was in jail on tax fraud charges. Forensic chemists are harder for drug dealers to terrify into not testifying against them than are people in their own neighborhoods.

“The underlying assumption is that there’s disproportionate enforcement of the law in minority communities,” said Mr. Stuart, the lawyer.

Under the guidelines, an employer can exclude applicants with criminal convictions provided it can demonstrate that the exclusion is “job-related for the position in question and consistent with business necessity” — a phrase that appears in the law itself and is not defined in the guidance. The easiest way for employers to do that, according to the E.E.O.C., is to develop a “targeted screen considering at least the nature of the crime, the time elapsed and the nature of the job.”

Ideally, Mr. Stuart said, employers would prefer hard-and-fast criteria and a simple yes-or-no answer to a hiring decision. But instead, he said, the E.E.O.C. wants employers to first determine what criminal convictions might rule applicants out for each job and then judge each candidate against the job in question, which could be a painstaking process. Mr. Stuart recommended that employers start by thinking about broad categories of criminality: theft, violent crimes involving felonies, sex crimes, drug crimes.

If employers conclude that on the basis of three factors — the nature of the crime, the time elapsed and the nature of the job — an applicant is ineligible, “then they have to do an individual assessment, and there are eight different factors that the E.E.O.C. says you have to look at,” said Pamela Q. Devata, a Chicago partner in the law firm Seyfarth Shaw. “The employer has to have a dialogue with the individual, or at least give the individual an opportunity to provide a response about the fact that the criminal history makes them unable to do the job.”

Andrea Herran, a human resources consultant in the Chicago area, said that the new procedures would subject small businesses to a legal cross-fire, especially businesses with employees who work in the field. Those companies are potentially liable for the actions of an employee in a client’s home or office.

“It’s almost like you’re being squeezed on both sides of the law,” Ms. Herran said. “If somebody’s making them nervous with their criminal history, and they’re worried about getting sued on the other side, what’s a business owner supposed to do?

Hire as few people as possible is the usual answer.

The next best answer is to demand a college degree or even an advanced degree. The EEOC, which is run 100% by people with college degrees, is mostly fine with that kind of discrimination!

... Even if an employer develops a job-related and business-necessary rationale for excluding some criminal convictions, the exclusion could still be considered discriminatory if there is a less discriminatory alternative that would achieve the same result. For example, Mr. Stuart said, an employer that has a legitimate reason to exclude convicted drug criminals could presumably achieve the same result by screening job candidates with drug tests.

The guidance specifically discourages employers from asking about criminal history on an application, and Mr. Stuart said that he was telling his clients that to avoid a fight, they should wait to ask about criminal convictions “until they have determined that the person is qualified and in the pool of people who would be offered a job.”

Ms. Devata said that when employers did ask about criminal convictions, they should tailor the question narrowly to the job at hand.

Because nobody ever gets promoted. So, don't try to hire people who are more likely to be promotable if you know what's good for you.

Ms. Devata warned that the E.E.O.C. seemed to be preparing for battle on this issue. “The E.E.O.C. has indicated that they are already investigating hundreds of charges related to the use of criminal history in employment,” she said. “The implications of that is that the E.E.O.C. has been looking into this area, and will continue to do so, likely with more force and effect, now that the new guidance is out.”

Hiring is an anti-discrimination minefield, and firing even more so, so the best thing to do is to hire as few people as possible and work them really hard.

35 comments:

The document cites Department of Justice statistics that show a Hispanic man is nearly three times as likely as a white man to be incarcerated, and an African-American man is nearly six times as likely.

Really? Ron Unz assured us that Hispanics had the same crime rate as whites.

Surprisingly, the federal and state governments are actually requiring more criminal background checks. Homeland security issues have caused regulators such as the DOT Hazmat and the Nuclear Regulatory Commission require criminal background checks. School bus drivers along with anyone who works in a school will get a background check.

I guess what is good for the government is not good for the private sector.

Yeah, lawyers have a handy little shortcut to break down differentiate minor crimes from major crimes-- misdemeanors and felonies.

Geez, I wonder how the EEOC react if an employer had applicants fill out yes/no answers on convictions from the US Code list of deportable offenses. A pretty mixed bag which range from, "Crimes of domestic violence, stalking, or violation of protection order, crimes against children" to "Participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing." (I wouldn't hire that guy either!).http://www.law.cornell.edu/uscode/text/8/1227

“African-Americans and Hispanics were more likely than whites to be arrested, convicted or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for whites.”

Those estimates of drug use are bogus, being based on self-reports. When a more valid estimation method is used, e.g. rate of admission to emergency rooms due to overdose, the minority usage rate is commensurate with their arrest rate.

This is Obama, seeking re-election, showing he does not give a darn. He's going all out to make employers hire Blacks and Hispanics, or "else." That's what that is all about.

Still convinced Obama is not going to commit a Self-Coup? I called that years ago. Of course he will. A guy who says he can just print and spend money, won't enforce laws he does not like, and won't take illegal aliens caught in Arizona will do pretty much anything.

That Obama would not slap this down, to stimulate SOME job growth and White hiring says he has no intention of ever leaving, or really campaigning. He'll just stage a coup.

But there is no corporate reason for the college degree requirement, apart from some academic or gov't jobs, so how could EEOC impose on either side of it? It's done purely to keep the applicant pool manageable (like the passage from "Liar's Poker" about econ majors). If the employer knows you lack a degree but senses above-average capability for XYZ widget business, it's probably an edge because then he views you as usefully desperate.

Contrast that to the situation in World War 2. War workers were needed, period. I read an account of one guy who knew a little about wiring (by his own admission, he knew less than a journeyman electrician knows). His fellows learned of his modest skills - which included a primitive ability to read parts of simple plans - when he showed up at an airplane plant and volunteered to work. He was promoted to foreman of the plant that day. They needed him. He said he learned on the job. And he did a good job.

(No, he didn't have a degree.)

Many people in our republic are now considered superfluous. I say that the fundamental reason for this is that the country is going nowhere, wants nothing, and is doing nothing. Employers from heavy industry to medical to financial and all points in-between use the scanned resumes (see first link) and similar techniques not because they are perfectionists but because they don't want really to hire anyone.

Here's an oldie but goodie. Take a good hard look at it, too. You're naive if you think economizing is the only thing on their minds.

they aren't hiring because the united states has the highest corporate income tax rate in the world. thanks to you know who. mister "doing fine" himself.

some of the big companies can pass that cost on to their customers simply by raising the price of their products, but most of the smaller companies cannot do that right now, and they account for the majority of the hiring.

let's not get into liberals and their plans to raise the minimum wage to 10 dollars an hour or whatever it was they wanted. never been a better way to eliminate jobs.

In Science Fiction an overpopulated world is different from an underpopulated world. The value of an individual at least in fiction varies with supply.

For example, there is a famous Larry Niven story in which an offender is sent to the organ banks for jay walking. In that future where there are plenty of people they cut up some people to supply spare parts for others.

I remember being taught in school that the population of the world was two and a half billion. My childhood was pleasant. That world with it's 2.5B people was swell as far as I could tell.

Today we have an extra three or four billion people. We don't need at least a billion of them by almost any accounting. The value of any individual is less now. Is the law just slow to catch up to this new reality?

There is almost universal revulsion with the pederast Jerry Sandusky. We certainly have no cure for his inclinations. Why don't we just "put him to sleep". Not punishment. Rather no fault execution. Locking him up for life is hardly more humane.

We would need to have fewer regulations and rules about ex-cons if we had fewer ex-cons. I'm not not trying to propose anything draconian here, but if we executed after three strikes rather than encarcerated, some of this problem would disappear. What would be the downside?

After getting burned by previous black employees (we're talking major theft and FBI involvement in the arrest, despite fairly complex interoffice anti-theft measures), my husband's private sector small business employer now hires almost exclusively relatives or close-friends of existing employees. Plenty of nepotism (one guy has his daughter, son, and son-in-law on the payroll) but thus far no more theft and an almost entirely White workforce (even further fail-safe measures were, of course, taken after black guy's firing).

FWIW, my husband's customers are not hiring (and some are going out of business) not due to minority hiring requirements, but the sheer arbitrariness and unpredictability of current economic measures. They're veering from metals to dollars to euros to dollars to metals, desperately in search of a safe haven and trying to convince themselves it's not all going to crash.

A pretty mixed bag which range from, "Crimes of domestic violence, stalking, or violation of protection order, crimes against children" to "Participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing."

What about communist persecution, genocide, torture, and extrajudicial killing?

My teenage son was looking for a part-time job. Here's what we learned.

North Carolina employment laws (not know for being tough) prohibit anyone under 18 from working more than 4 hours daily and 20 hours weekly. Employers can be fined $10k per violation.The general manager of a major restaurant chain told me this, IIRC.

However, if they hire an illegal immigrant with forged documents and get caught, their penalty is nothing.

Which do you think they do?answer - They totally stopped hiring anyone under 18.

The local paper published today a good measure of the total drug usage in a nearby city. This city, pop. 130.000, has one single sewer plant. The paper commissioned a toxicology test on sewer water - sort of a very large collective urine sample - that was tested for drug metabolites. Together with info on population, total amount of urine in the sewer water flow, and some other parameters it was possible to calculate how many drug doses that had been taken by the city population as a whole.

Redo that in several US. cities, and factor in demographic data, and you will get info on drug usage by ethnic group.

My teenage son was looking for a part-time job. Here's what we learned.

North Carolina employment laws (not know for being tough) prohibit anyone under 18 from working more than 4 hours daily and 20 hours weekly. Employers can be fined $10k per violation.The general manager of a major restaurant chain told me this, IIRC.

However, if they hire an illegal immigrant with forged documents and get caught, their penalty is nothing.

Which do you think they do?answer - They totally stopped hiring anyone under 18.

In addition to straightforward intentional discrimination on the basisof national origin, it sounds like a case of disparate impact in regard to national origin. Citizens have to provide proof of age, while Mexicans don't.

"For example, there is a famous Larry Niven story in which an offender is sent to the organ banks for jay walking. In that future where there are plenty of people they cut up some people to supply spare parts for others."

We do farm the poor for spare body parts: it's called plasma donation.

The document cites Department of Justice statistics that show a Hispanic man is nearly three times as likely as a white man to be incarcerated, and an African-American man is nearly six times as likely.

That's why the Justice Dept normally lumps whites and Hispanics together when it releases crime statistics. It helps to hide the disparity between whites and blacks.

Surprisingly, the federal and state governments are actually requiring more criminal background checks. Homeland security issues have caused regulators such as the DOT Hazmat and the Nuclear Regulatory Commission require criminal background checks. School bus drivers along with anyone who works in a school will get a background check.

I guess what is good for the government is not good for the private sector.

Yes, and the military gives an IQ test to every new recruit, something that would get a private company sued out of business.

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